A review of “state secrets”

Posted Tue, September 28th, 2010 10:26 am by Lyle Denniston

UPDATED to 11:49 a.m. All 14 granted cases are discussed.

The Supreme Court, issuing its first orders accepting cases for the new Term, on Tuesday edged toward analysis of the government’s authority to label information it has as a “state secret” and thus to prevent its disclosure in court. It will do so, though, only in a narrow context: the rights of defense contractors. The issue in two cases brought by major defense contractors is whether it is unconstitutional for the government to invoke the “state secrets” doctrine in a way that prevents a contractor from defending itself against a claim it did not live up to its contract.

The Court granted review in 14 cases overall, noting in the process that the new Justice, Elena Kagan, is recused from four of them — presumably, because of her former role as U.S. Solicitor General. Two of the 14 will be consolidated and heard together, and two others will be heard back-to-back.

The Court also returned to the 15-year family feud over the huge estate of the late Texas oil tycoon, J. Howard Marshall. The estate of his widow, Vickie Lynn Marshall (also known by her topless dancer stage name, Anna Nicole Smith), continues to press the claim that a bankruptcy court award of money to her should take priority over a Texas state court ruling handing the estate to one of Marshall’s sons. The case returns to the Court four years after the Justices returned it to lower courts for further review. The issue now is how to define a “core proceeding” under federal bankruptcy law. The new case is Stern, executor, v. Marshall, executrix, 10-179. Both Mrs. Marshall and her legal adversary, E. Pierce Marshall, have died.

Among the newly granted criminal cases, the Court chose one in which it will decide whether it violates the Constitution’s right to confront witnesses against the accused for a trial judge to admit the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe. The issue arises in a case involving a blood test as evidence in a drunk-driving case. The granted case is Bullcoming v. New Mexico (09-10876).

After the heavy political controversy over the Supreme Court’s ruling early this year treating corporations as “persons” and thus freeing them to spend what they wish in federal election campaigns, the Court on Tuesday agreed to examine whether corporations are “persons” for another reason: that is, whether they are entitled, under federal law, to “personal privacy” protecting from disclosure of corporate information that is in the files of federal government agencies. The case, a test of a section of the Freedom of Information Act shielding records from disclosure if they involved “personal privacy,” is Federal Communications Commission v. AT&T Inc., et al. (09-1279). Justice Kagan is recused from the case.

The “state secrets” cases are General Dynamics Corp. v. U.S. (09-1298) and Boeing Co. v. U.S. (09-1302). While the controversy in this case is a major one, it is not the fight over “state secrets” that has drawn the most headlines in recent years; that fight is about using the doctrine to stop lawsuits by former detainees claiming torture and illegal detention. Pending in the Supreme Court itself, but not acted on Tuesday, is a “state secrets” case involving claims by lawyers for Guantanamo Bay captives that the government spied on their contacts with detainees (Wilner, et al., v. National Security Agency, et al., 09-1192).

General Dynamics and Boeing had a fixed-price contract to build an aircraft carrier-based version of the “stealth” fighter plane, but ran into difficulty meeting deadlines and producing models. They contended that they needed access to secret technology about the land-based “stealth” fighter, but the Navy would not release that to them. Ultimately, the Navy ended their contract. Their appeals, which the Court will hear together in one hour of argument, contend that it violated their constitutional right to due process to deny them a chance to defend themselves against the Navy’s claims that they botched the job.

Aside from the corporation “privacy” case, Justice Kagan is recused from three other newly granted cases. They are: Astra USA Inc., et al., v. Santa Clara County, et al. (09-1273), testing whether operators of public health hospitals, private clinics and community health centers have a right under federal law to sue drug companies for allegedly over-pricing the drugs they sell for out-patient treatment; U.S. v. Tinklenberg (09-1498), asking the Court to clarify how to count the days that are allowed to lapse before an individual charged with a federal crime must be put on trial, or have the charges dismissed; and Schindler Elevator Co. v. U.S. ex rel. Kirk (10-188), seeking further clarification of the kinds of public reports by government agencies that are barred from use by private individuals seeking to recover for the government any federal funds falsely obtained — a case under the False Claims Act. In this case, the reports at issue are federal agency responses to requests for information under the Freedom of Information Act.

The Court granted two cases — and will hold back-to-back one-hour arguments on them — on the so-called “stream-of-commerce” theory that is used to justify lawsuits in U.S. courts against foreign companies whose products find their way into U.S. markets. The issue in both cases is whether a state court has authority to decide a case against an overseas company after that firm had introduced into the “stream of commerce” a product that ultimately wound up injuring a resident of that state. One case is Goodyear Luxembourg Tires, et al., v. Brown, et al. (10-76), involving the death of two North Carolina youths in France when a tire made overseas failed and the bus in which they were riding crashed and rolled over. The tire was made in Turkey, but the Luxembourg branch of Goodyear and branches in Turkey and France were sued in a North Carolina court over the tire’s failure. The other case is J. McIntyre Machinery Ltd. v. Nicastro, et al. (09-1343), involving an accident in a New Jersey scrap metal facility on a machine made by McIntyre, a British company that sold the machine through an unaffiliated distributor. That lawsuit was pursued in state court in New Jersey.

The Court took on three criminal cases in addition to the one involving the crime lab supervisor’s testimony. They are Kentucky v. King (09-1272), to clarify when police may enter a home without a warrant, when they are pursuing a suspect; the case tests when police may do without a warrant due to “exigent circumstances” that the officers themselves created — the first question presented; Freeman v. U.S. (09-10245), testing whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission has reduced the sentence range, even if the judge had already accepted a plea deal involving a longer time in prison; and another sentencing case, Sykes v. U.S. (09-11311), testing whether it is a “violent felony” justifying a longer sentence under the Armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop.

Finally, the Court agreed to sort out when a state court lawsuit is barred when a group of consumers were denied a right to bring a class-action lawsuit against a company, then other consumers with the same legal complaint tried again. The case grows out of the thousands of lawsuits that were filed against the Bayer Corp. over alleged harms due to the Bayer prescription drug, Baycol, given to lower cholesterol. Baycol was distributed from 1997 until 2001, when it was withdrawn from the market after being linked to 31 deaths in the U.S. The newly granted case is Smith v. Bayer (09-1205).

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.